Director of Public Prosecutions v Gould

[2018] VCC 349

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02141
CR 17-02142
CR 17-02144

DIRECTOR OF PUBLIC PROSECUTIONS

v

DARREN GOULD
RACHEL FAIRMAN

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	20 March 2018
CASE MAY BE CITED AS:	DPP v Gould & Anor
MEDIUM NEUTRAL CITATION:	[2018] VCC 349

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – attempt to pervert the course of justice – false imprisonment  - common law assault
Legislation Cited: Sentencing Act 1991 (Vic), Criminal Procedure Act 2009 (Vic)
Cases Cited: Marrah v The Queen [2014] VSCA 119; R v Verdins (2007) 16 VR 269; Bugmy v The Queen [2013] 249 CLR 571; DPP v Louis L'Eveille, [2018] VSCA 60; DPP vDalgleish (2017) ALJR 91; Semaan v The Queen [2017] VSCA 279

Sentence: Gould – Convicted and sentenced to a term of four years’ imprisonment with a non-parole period of three years imprisonment. Fairman - Convicted and sentenced to a term of eighteen months’ imprisonment with a non-parole period of twelve months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Churchill	Solicitor of the Office of Public Prosecutions
For Offender Gould	Mr M. Mann	Stary Norton Halphen
For Offender Fairman	Ms A. Sharpley	Law & Advocacy Centre for Women

Pages 1 - 8

 

HIS HONOUR:

1The purpose of me giving this pronouncement as to sentence, Mr Gould - and indeed, Ms Fairman - is so that you are aware of the reasons for your sentence, that such is recorded. You will no doubt, Mr Gould, be able, at your leisure, to actually get a full copy of it in writing, even if you cannot hear everything today precisely, okay?

2In this matter Ms Churchill appeared for the Director.  Ms Churchill appears today.  Mr Allen appeared on behalf of Mr Gould, Mr Mann appears today, and Ms O'Brien appeared for Ms Fairman and Ms Sharpley appears today.

3The matter was heard as a plea on 9 March 2018. Both prisoners pleaded guilty to charges in indictment No.1711059. Pursuant to s 145(2) of the Criminal Procedure Act the Court was asked to take into account, certain summary offences.

4The first charge, involving both prisoners, was a charge of false imprisonment carried out on 5 January 2017.  The victim in this matter was Jacqualyn Muir, who was in fact a former girlfriend of Mr Gould's.  This is a common law charge of false imprisonment, for which the maximum penalty that can be imposed is one of ten years.

5The second charge to which both prisoners pleaded guilty, was also a common law charge; in this case assault.  The assaults occurred prior to the actual false imprisonment, and surprisingly, as agreed on the plea, each of the prisoners is responsible, not jointly, but for their own particular actions by way of assault, so that they are only liable for the individual conduct, according to the prosecutor's opening.  So insofar as the plea of Mr Gould was concerned, he is only responsible for the assault involving him punching Ms Muir to the head; the punch being of such a degree that it knocked her to the ground.  Insofar as Ms Fairman is concerned she is only responsible for her individual behaviour, being that she grabbed the victim by the throat.

6The third charge on the indictment, again is a charge according to common law.  It is the most serious charge on the indictment, the offence of attempting to pervert the course of justice, for which the maximum penalty is 25 years gaol.

7Both defence counsel accept Exhibit A, which was the prosecution opening, as detailing the facts upon which I am to sentence their clients. Such summary also describes the summary offences. Insofar as Mr Gould is concerned that involves Summary Charge 6 and Summary Charge 7, the commission of indictable offences while on bail.  The first of those in Charge 6 is the commission of the offence of false imprisonment, and Charge 7 is the commission of the assault.  Applicable penalties are either a period of three months gaol and or, 300 penalty units.

8Insofar as Ms Fairman is concerned there were three summary charges:  Charge five; which was a breach of condition of bail, that you contacted the co-accused, for which the same penalty applies - three months maximum penalty or 300 penalty units - and equally Charge 7 was a breach of bail insofar as contacting the victim, Ms Muir.  Charge 6 was an offence of a breach of a personal safety intervention order concerning the victim, the maximum penalty prescribed therein is two years and or 240 penalty units.

9The circumstances of these crimes are somewhat bizarre.  Indeed initially, in the submission made by Mr Allen, there was no explanation proffered at all for his client’s criminality.  Ms O'Brien, in her submission, explained the first charge, being the false imprisonment, as arising as a result of the upset and/or jealousy of Ms Fairman upon returning to the home and finding the victim - who, as I said, was an old girlfriend of
Mr Gould's - in the home.  The point should not be lost that the victim attended Mr Gould's home allegedly for the purpose of purchasing ice. 

10What, how and why events then proceeded, the Court is really not assisted from the submissions made by counsel, and all instructions obtained from the prisoners.  We know that Charge 2 occurred in the sense that, as I have explained, Ms Fairman grabbed the victim by the throat.  Mr Gould punched the victim to the head, which meant that she ended up on the ground, she was then dragged by both of them, and put in the car boot.  That, in itself, would be a frightening experience.  Fortunately it was not for a lengthy period, because they took her from Mr Gould's premises, to a property where a friend of the victim, someone called "Daniel", was.  As I say, the Court is unaware why that occurred, or why they took her there, however such are the circumstances of the false imprisonment.

11There is no victim impact statement filed.

12I am told by Ms O'Brien that after being delivered to this property, and meeting this person "Daniel", the victim thereafter walked back to her own home.  On her way back, she was assaulted again, apparently by this "Daniel", by being placed, apparently, in a wheelie bin, and thereafter the police were called.  The totality of all of this, and the confusion, speaks of persons being involved in a drug milieu.

13As I say, albeit there is no victim impact statement there are certainly no longstanding injuries as a result of the assaults.  Finally, in reply, Mr Allen did put that he had obtained instructions from Mr Gould that the basis and reason for this criminality, in particular, the false imprisonment, was a domestic dispute of some sorts, but essentially Mr Gould being so affected by drugs, really had not much memory of what happened.

14A warrant was issued and both prisoners were arrested thereafter on
6th January 2017.  In the record of interview both denied involvement, however thereafter an admission was recorded; an oral admission made by
Ms Fairman, as to putting the victim in the boot, and taking her to Daniel's place.

15The circumstances as to the offence charged insofar as Charge 3 is concerned; being attempting to pervert the course of justice, is detailed, as I said, in Exhibit A: from paragraphs 22 through to 47.  This, of course, is a serious offence.  The circumstances are that it was persistent, in that Ms Fairman carried out the various aspects of the details, set out in the particulars in the indictment, over a four month and one week period.  That led to her preparing a false statutory declaration and showing such false statutory declaration to the co-accused, although it should be noted that Mr Gould is not charged in regard to this crime.  It involved Ms Fairman arranging for the victim to execute the declaration, apparently because of the recitation by
Ms Fairman as to the state that Mr Gould was in and the difficulties he was having on remand.  The victim said she "felt sorry for him" and was keen for him not to be imprisoned, and therefore consented to be part of this attempt to pervert the course of justice.

16Having had the declaration, Exhibit B on this plea, executed, it was then emailed by Ms Fairman to the DPP, and to the informant. Thereafter the other aspects of this charge, were committed when Ms Fairman offered the victim's mother a paid holiday provided her daughter changed her story, and subsequently there were threats seeking the story to be changed by the victim, delivered both to the victim mother's, and the victim.

17Ms Fairman comes before the Court with no prior offences.  Insofar as Charge 3 is concerned; the perverting the course of justice, albeit over such period, Ms O'Brien submitted to the Court, essentially it was doomed to failure when you consider the taped admission that the officer already had, prior to the attempts made to pervert the course of justice.

18Insofar as Mr Gould is concerned he has a concerning criminal history.  He is 47 now, and was born on 22 May 1970.  He is currently a billet in gaol.  I was referred to Exhibit G6 insofar as the evidence as to the mental aspects of this case by Mr Allen, the sentence for manslaughter passed on Mr Gould on 26 October 2007.  That manslaughter was committed by way of a knife and Mr Gould was sentenced to a period of imprisonment of seven years with a minimum of six.  He was described by Justice Coghlan in 2007 - as a man with an extensive criminal history, who at that time had 69 prior convictions, from either 18 or 19 appearances.  When he committed the manslaughter he was equally on bail, as he was in this case when this offending occurred.

19As I said to Mr Gould:  "You don't come up to be sentenced for your prior matters".  However, when you have got a history, such as Mr Gould, the circumstances are such that the Court is limited, insofar as to what it can do by way of sentence.  It is also to be pointed out that there are significant priors for violence in addition to the manslaughter matter in Mr Gould's history.  In October of 2014, he received four months gaol for recklessly causing injury; in 2006 he was convicted of assault police; in 2003 he was convicted of assault police, and as described by Justice Coghlan, throughout the period his prior sheet demonstrates, from the age of 21 through to his age now, 47, he has numerous convictions for burglary, assaults and thefts.

20There was no issue from Mr Allen that the only appropriate sentence in the circumstances for Mr Gould is one of immediate imprisonment.

21As to the circumstances themselves of the false imprisonment - that is, Charge 2 on the indictment - both counsel were at pains to point out that it was not the worst case of false imprisonment that has been before this Court, and that has to be accepted. They also were at pains to point out that the totality of the period in which the victim, Ms Muir, could have been locked in the boot of the car was five minutes, at most, and the Crown did not dispute such.  However, albeit there is no victim impact statement, one can imagine the terrifying circumstance of being placed in that position, without knowledge of where one might end up.  However, as indicated, the victim was released.  It was submitted by the Crown that albeit at the lower end, or probably low to mid-end, it should not be underscored by way of its seriousness, and that is clearly demonstrated by the maximum offence prescribed by Parliament.

22Insofar as Mr Allen's submissions; as I said, they began with a concession - insofar as Mr Gould is concerned - that a sentence of immediate gaol was inevitable.  He tendered, as Exhibit G1, written submissions.  There were references, Exhibit G2, which I have read and I accept totally.  He has been a good father and he is held in high-esteem by his two sons, and there is no doubt that he desires, after he has served his time, to continue his role as a father and a grandfather.

23Insofar as his psychological issues with depression, Exhibit G3 was a letter which indicates a course, by way of psychological awareness, which he has been undertaking in prison.  Exhibit G4 was the certificates of courses that he has undertaken while on remand.  Exhibit G5 was a very positive matter, given that we are dealing with a man who has been afflicted by drugs almost all his adult life, and that is six negative drug screens, which I am told were random from the period 3 March 17 to 9 August 17.  Further, a reference to the comments of Mr Justice Coghlan insofar as his mental condition - I will come to Mr Justice Coghlan's comments in due course - and the final document was Exhibit G7, which was the mobile forensic health service, which - certainly from the Court's point of view - is very pleasing to come to an understanding that such a service is available in prison for persons suffering depression, and he is currently on a course in prison conducted by that mobile service insofar as assisting him in understanding and dealing with his background of depression.

24Mr Allen set out the antecedents and personal circumstances of Mr Gould and the difficulties he had endured. Over time social disadvantage, his limited education - which has impacted upon him - and what appears to be the escalation of offending which essentially happened from approximately 1997, when his then wife died.  It is thereafter that he developed more pronounced criminal history, tied up very much with drugs.  Drugs have not been of great assistance to him, in the sense that they have impacted not only, no doubt, to exaggerate the depression of which he suffered, but also resulted in various suicide attempts.  He is, it is said, motivated now, after he completes his period in gaol, and after he overcomes a lot of unresolved trauma, to get out and change his attitude. There was reference made to Justice Coghlan's comment in the sentence in the manslaughter matter, in particular to paragraphs 36 and 40.  I have read those, but I think it is important to perhaps reflect on other statements made:-

25At [26] His Honour said this:

"You have been released on many community-based orders in the past and probably breached most of them.  You have been placed on suspended sentences and one set of matters were adjourned for two years on appeal, on your undertaking to be of good behaviour.  You seem to have almost completed that, but whether or not you never were dealt with for the breach of it the appeal has been for an aggregate sentence of six months' imprisonment.  In June 2001 you served a further 12 months suspended sentence".

26He says at [27]:

"It's clear that over a ten year period you have been treated very leniently by the courts.  On some occasions you have responded, but from June 2001 your offending appears to have escalated".

27And of course it escalated to the degree that you received the manslaughter sentence.  Further, at [30], he said this:

"You had a great deal to drink on that day “(similar to what you did in this case, where you'd had a lot of drugs.)” You had, by then, been involved in the events of March 2005, which must have demonstrated to you the problems associated with your abuse of alcohol - particularly when coupled with the use of drugs; whether prescribed for you or not.  There is nothing about your substance abuse which can mitigate your behaviour".

28Paragraph 31:

"You have a long history of offending, driven in the main by substance abuse.  You deserve credit for ending your heroin addiction, but if I suspect it has been replaced by alcohol and other drugs then you are still very much a long way away from recovery".

29In regard to your prior matters he says, at [32]:

"Many of those appear to be of a relatively minor nature, but your offending has been on an ascending scale even though you have been given every opportunity in the past.  It follows that personal deterrence will play a significant part in this sentence".

30It seems to me, that all those statements must be taken into account, and in saying that, I do not disregard the submission made that it is appropriate for the Court to take into account, in particular, not only your plea of guilty and the assistance to justice that it represents, but also your background, as I have detailed.  However, insofar as that being in any way a reduction of your culpability in this matter I would reject such a submission.

31At [25] (Exhibit G1) your counsel referred to the Court of Appeal case of Marrah v The Queen [2014] VSCA 119, [16]. I accept that it is appropriate for the Court to consider the context, and your background, by way of explanation for your long criminality, as was detailed by Justice Coghlan.

32The Court of Appeal yesterday delivered an appeal decision, which considered this very matter.  It considered, where there are no Verdins propositions being put to the Court, but similar to what essentially is being put to this Court, in [25] of Mr Allen's submission, the principles of Bugmy v The Queen [2013] 249 CLR 571; DPP v Louis L'Eveille, [2018] VSCA 60, date of judgment 19 March 2018. By coincidence I only received the case not yesterday afternoon, it is a consideration of whether the sentencing judge misapplied principles laid down in Bugmy.  Bugmy of course, and the case of Marrah, looked at persons who were children with particular social disadvantage, and of course I accept that you have endured particular social disadvantage. I had some discussion with Mr Allen as to this. I have concluded, as is set out by the Court of Appeal in L'Eveille, that although Bugmy principles are engaged to some extent, your moral culpability was nevertheless still high, and that is the fundamental matter that must be considered when determining your sentence.

33I do not, in fact, find, while I take such into account by way of explanation, that there is any reduction at all in your moral culpability by way of taking into account what is described, by your counsel at paragraph 25, as your traumatic background. 

34However, Mr Allen was correct to stress the steps you have taken in regard to trying to control your drug problem by counselling in gaol, your instructions that you are, having reached this stage in your life - albeit that you know there is a sentence awaiting - keen to free yourself of the problems that have afflicted you over many, many years.

35As far as you are concerned, Mr Gould it is very positive that you have been able to be abstinent in gaol over 13 months.  Now, that does not mean much to most people, because they are probably not aware how easy it is to get drugs in gaol, so for you to have achieved that is excellent. I also take into account the counselling you have been attending, the letters that were tendered by your children, and the fact that you have reconnected with your mother and two sons.  It was submitted by counsel that I should take into account the totality of your attempts while on remand as leading to a moderation of your sentence.  It was also put that you have suffered while on remand for a particular period - as I understand from March to September of 17 - a lock down produced as a result of a riot at the MRC, which, remarkably, is suggested for all that period that you were only let out of your cell for two hours per day.  There was some suggestion yesterday made to the Court that there was going to be some reflection about that, but I understand that is not the position now?

36MS CHURCHILL:  Your Honour, my understanding is that submission has been withdrawn.

37HIS HONOUR:  Right.

38MR MANN:  That's correct.

39HIS HONOUR:  You're not pursing that?

40MR MANN:  No, Your Honour.

41HIS HONOUR:  Okay.  Well, I disregard totally that matter.

42As I said, Mr Allen subsequently, having got instructions in the break, did offer on instructions from Mr Gould, some enlightenment as to the circumstances of the offending.  He said that the background was drug use, there was a domestic incident which occurred between his old and new partner, but unfortunately he had a lot of difficulty, given his condition at the time, in being able to advise the Court of any other causal factors.

43The DPP’s attitude to the plea put by Mr Allen, was to stress the seriousness of the crime, albeit the small timeframe involved.  It questioned the issue of remorse demonstrated.  It referred to the comments of Justice Coghlan, as I have referred to, and the history of Mr Gould, and submitted the Court should be very guarded about accepting the suggested desire to rehabilitate as being in any way realistic.

44I do take into account all of the circumstances put by
Mr Allen.  As I say, you are entitled to the appropriate discount for the utilitarian benefit of your plea, and it demonstrates an acceptance of your responsibility.  I have spoken about the issues of trauma and its limited impact on this sentence, however I do accept that it provides context.  I note the submission as to totality and concurrency and I have also made my comments insofar as rehabilitation is concerned, and I take into account, as set out in paragraph 32 of your counsel's submission, the matters put by way of totality.

45As to your sentence, in regard to the first charge of false imprisonment on the indictment you will be sentenced to a period of imprisonment of four years.

46In regard to the assault period of imprisonment - that is, Charge 2 you will be sentenced to two months imprisonment.

47On each of the summary charges I sentence you to a period of imprisonment of one month.

48I do not make any orders as to cumulation, making a total effective sentence imposed upon you of four years.

49I order that the minimum period that you should serve before being eligible for parole is one of three years. I declare pursuant to s.18 that the 438 days that you have served on remand to date be deemed as service of this sentence, so that of the minimum period of three years, you will have to serve the period less 438 days that you have already served.

50Insofar as s.6AAA the Parliament sets me, Mr Gould, a somewhat difficult task.  The Court is required to tell you what would be the consequences had you not pleaded guilty.  Given the totality of matters that I have had to consider in regard to your sentence that is difficult, but doing as best I can to comply, the sentence I would have sentenced you to would have been a total effective sentence of six years and eight months with four years to be served before being eligible for parole.  That is, instead of the sentence imposed today of four years and a minimum of three years, had you not pleaded guilty I would have sentenced you to a period of six years and eight months with a minimum of four years.

51Yes, any matters that I need to clarify insofar as Mr Gould's concerned,
Mr Mann?

52MR MANN:  No, Your Honour.

53HIS HONOUR:  Yes.  Well, Mr Gould can be taken down.  Thank you,
Mr Gould.  Good luck.

54Ms Fairman, the same comments I made to Mr Gould apply to you in the sense of - you can be remain seated while I go through the matters that have been raised.  Ms Fairman's sentence is a difficult sentence, because she comes before this Court with no prior offences whatsoever.

55The difficulty is the seriousness of the crimes; in particular Charge 3.  In considering Charge 3, and the gravity of such an offence, it is necessary to consider what Charles JA said in Healy, an unreported case of 4 August 1997:

"The administration of justice depends upon the system operating so that people who commit crimes are pursued, are brought to court, and are punished, and those who take part in trying to interfere with that system commit a grave injustice insofar as the community is concerned".

56There is a further general principle that also was mentioned in that decision, consistent with many decisions made by Courts in regard to such sentencing, that all sentences for this offence depend particularly on their circumstances.  In reality that is saying no more than the High Court recently said in Dalgleish (2017) ALJR 91, 1072 [49], that a person must be given individualised justice, and that relates to sentencing a person for the particular circumstances of the crime that they have committed.

57The particular purposes that apply in regard to Charge 3 are as follows: -

Punishment must be imposed which marks public disapproval.  Specific and general deterrence are principal purposes of sentencing for perverting the course of justice, because such sentences are thought to assist in protecting the administration of justice.

58I have already gone through the matters insofar as Charge 1 is concerned in dealing with your co-accused, but in regard to Charge 3 the offending was not only serious, but sustained.  As I detailed, such was over a period of four months and one week, it involved pressure being put on a witness initially by indication of the manner in which your co-accused was serving his time, and subsequently, by way of threats, it involved the preparation and effecting of the execution of a false statutory declaration, and further, it involved the sending of such statutory declaration to not only the DPP, but the informant, thereafter it involved you conveying threats to both the victim and her mother.

59In this regard I was referred, and I did look at, the various principles that are set out in Semaan v The Queen [2017] VSCA 279; a Court of Appeal decision reviewing an original decision of Beale J, but in particular setting out the factors to be taken into account at paragraph 39(a) to (f).

60Insofar as the plea of Ms O'Brien was concerned, she stressed what she described as bizarre circumstances.  Insofar as your first offence she submitted that it was somewhat spontaneous, and contextualised by all the parties abusing ice.  I accept that.  She stressed, as I have already said, the very short distance which the victim was conveyed, the short period of her detention, and the fact that you admitted your role so quickly afterwards.

61Insofar as Charge 3 she accepted its serious nature, because of your persistence, however submitted that the offending was born of naivety and a misguided desperation to help your partner.  She noted that, given the comments made to the victim, the victim herself was acting under a misguided perception that she was helping your co-accused, and given the circumstances of your admissions, as I have earlier said, she stressed the naivety of the crime.

62The major factor in your favour, of course, is that you have no prior convictions.  Not only do you have no prior convictions, but your achievements by way of your personal circumstances are something to admire.  As was set out, through your own hard work you completed a nursing degree by correspondence at James Cook University.  You were awarded a rural nursing scholarship, and despite being involved in motherhood during all that period of study - you had, I think, your fourth child - you continued to study and continued to achieve, to the extent that by mid-2006 you were the CEO of the Woorabinda Aboriginal Council.  You worked in that position for a period of 18 months and were highly valued by the local community.  It is an achievement that should be recognised by the Court.

63Of course, thereafter you were unfortunately required to come back to Melbourne, you were having difficulties with your marriage, and at some stage drugs became involved.  I am not too certain how it came about, but it did, to the extent that you had a further short-lived marriage, a violent third husband, which turned out to be somewhat of a disaster.  You commenced working in 2014 at the Main Street Medical Clinic in Lilydale and again, unfortunately - in approximately 2015 at a football club function - met another person called Dylan, where you again entered what was unfortunately a violent relationship.  The totality of those disappointments, apparently, has led to a situation where you became involved, despite the fact of having no priors at all, in the drug milieu.  Somehow one day, outside the Flagstaff hotel in Melbourne, you met your co-accused.

64The sad part about all this is that it was necessary, because of the condition you found yourself in, to self-report your affliction with the drug ice, that led to you losing your status as a nurse, as a result of APRA's actions. But also that drug use, and the associated relationship with Dylan, fractured your relationship with your own children.  Dylan was then sentenced to gaol for assaulting you and breaching IVOs, and then you met up with your current co-accused and entered a relationship with him.  Such relationship, to use the word used by your counsel, was "marred" by drug use.  Both of you, at the time of these offences, were unemployed, allegedly trying to make changes to your life, and allegedly trying to move out of the Heidelberg area.  The impact of drugs upon you has been dramatic.

65In support of the submissions on your behalf was tendered the psychiatric report of Warren Simmons.  That report is dated 20 February 2018, I think.  I will not go through the history, because it sets out on p.4, essentially, your relationship history, your achievements, your drug and alcohol history, and your medical and psychiatric history.  It reports, by way of opinion at p.6, that you are a person who generally had a positive childhood.  The problems that you have, and now have, have been the, I suppose, ultimate effect of multiple relationships which have all had a degree of "dysfunction", to use his words.  The "trigger", as he calls it, for you commencing substance abuse, appears to have been your relationship with John, as I earlier reported, and your own description of that relationship as being violent and primarily alcohol fuelled.  You have been able to treat your mood disorders with Lithium, and that has apparently had some benefit, although he was uncertain of the accuracy of such a diagnosis.  He finally concluded as follows:

"While the disposition is a matter for court it's respectfully suggested
Ms Fairman would benefit from drug and alcohol counselling with a focus on increasing self-sufficiency and harm minimisation and relapse prevention strategies".

66Mr Simmons noted your very limited history of prior offending and the fact of you being before this Court being related, almost totally one would think, to use of amphetamines, methamphetamines, and the lifestyle that that renders.

67It was submitted by your counsel that you are a person who has a very good prospect of rehabilitation, and the steps taken as demonstrated by you in the prison programs, Exhibit F5, demonstrate that. Ms O’Brien relied in particular on the educational certificates, Exhibit F3, the letter from Rafaella Ilori, and the WestCASA report; Exhibit F6.

68

It was submitted by Ms O'Brien that given your lack of prior convictions, your age, your positive prospects, which it is said the court should have in regard to your future - and that, of course, depends on you being totally free of drugs, so one has to be guarded about that - but the Court could consider a combination sentence by way of a period of custody, which essentially

Ms O'Brien submitted really should not be much more than the period that you have already served, which I am told now is - what was the agreed figure there?

69MS O'BRIEN:  Three hundred and nine, Your Honour.

70HIS HONOUR:  How many?

71MS O'BRIEN:  Three hundred and nine.

72HIS HONOUR:  Three hundred and nine days and a community corrections order.  As I said, that report insofar as the community corrections order was not obtained by the Court till today, but it is positive insofar as you are concerned.

73One matter that did surprise me in Ms O’Brien’s submission to me was that allegedly your relationship with Mr Gould is going to continue.  That, I must say, puzzles me, but it is not a matter for me to make those decisions.

74The prosecution's reaction to those submissions, was that a combined sentence in your case is not appropriate.  It is to be pointed out that the limitation involved is a sentence which only involves now a maximum period of imprisonment of one year.  The prosecution stress the factors that I have earlier referred to Semaan, and the factors that were involved in this case:- your persistence, the fact that such was premeditated, that it was indeed well-planned in the sense of the reading to your co-accused and the pressure involved insofar as Ms Muir's mother was concerned, and again, the fact that you had committed these offences while on bail.

75The prosecution further submitted that given Simmons' report you should be seen as having had limited insight to the seriousness of your offending.  The prosecution accepted your apology and, of course, said to the Court that the plea of guilty must be given full effect, by way of discount to you.

76Ms Fairman, as I said, your sentence is not easy.  You have some great achievements, however your life has been marred by drugs and you are now before the Court on these charges because of that.  You have been in gaol for the 309 days, and no doubt you do not need a lecture from me as to the impact on your life, and your family, as a result.

77I have given your position close consideration, however due to the persistence of your criminality insofar as Charge 3 is concerned, and of the need to effect a sentence where general deterrence must take precedence, I have determined that the submission by Ms O'Brien as to a community corrections order in conjunction with a sentence of imprisonment should be rejected.

78Insofar as Charge 1 of false imprisonment, you will be sentenced to imprisonment of nine months.

79In regard to the charge of assault; given the particular nature of the agreement made with the prosecution in this matter as to the limitations to the offending that I have to take into account, I sentence you to a period of imprisonment of one month.

80In regard to Charge 3; that is, attempting to pervert the course of justice, I sentence you to a period of imprisonment of 18 months.

81I do, however, take into account all the matters that were put to me in determining not only the totality of this sentence, but the period that you must serve before being eligible for parole.  I therefore order that the total effective sentence will be 18 months, so that I do not cumulate any of the sentences.

82The period that you must serve before being eligible for parole is a period of 12 months, that is on the indictable matters.

83Insofar as the summary matters I sentence you to a month on each of Charges 5, 6 and 7, and I make no orders as to cumulation.

84I order pursuant to s.18 of the Sentencing Act that the period of remand that you have served to date, being 309 days, be deemed as service of this sentence, so that the effect of this sentence will be that the minimum period that you have to serve is a period of 12 months less the period that you are still to serve; a period of 12 months less the period of 309 days that you have served to date.

85Again, I am required to tell you, the sentence that I would have imposed had you not pleaded guilty.  Again, I stress it is a very difficult matter when you only have to take one factor into account.  Doing as best I can do to comply with the requirements of Parliament, can I tell you, Ms Fairman, that had you not pleaded guilty, the total effective sentence I would have given you is 27 months, with a minimum period to serve of 15 months.  So that demonstrates the benefit to you of your plea of guilty.

86Are there any other matters I need to attend to on either matter?

87MS SHARPLEY:  No, Your Honour.

88MS CHURCHILL:  No, Your Honour.

89HIS HONOUR:  Yes.  I thank all counsel for their assistance and, Ms Fairman, you can be taken away, and good luck.  Get off those drugs.  You want to know what it means?  It means you have got ‑ ‑ ‑ 

90OFFENDER FAIRMAN:  How long do I - much longer?

91

HIS HONOUR:  I can't do the maths, but you haven't got long to serve.  You've done 309 days and I've given you 12 months to serve.  Yes.  Minimum, I mean, to serve.  Yes, thank you all.  Mr Mann, you might ask

Mr Allen to have a close look at that case of L'Eveille.

92MR MANN:  I will, Your Honour.

93HIS HONOUR:  It's quite informative insofar as taking into account long term social disadvantage, but being realistic when you have long term offending.

94MR MANN:  Thank you, Your Honour.  I'll pass that on.

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